There is nothing like free expression to test how much we truly value that freedom. Views expressed in a free and open exchange
are sometimes ugly, mean-spirited or profane. When such expression is unleashed, it requires a deep and abiding commitment
to the core value of free expression not to squelch it at its source.

Free expression in this country has withstood repeated assault during times of political upheaval. In a case well known to
free speech advocates, Cohen v. California, the United States Supreme Court overturned a man’s conviction of
disturbing the peace because he appeared in court wearing a jacket that displayed an obscenity (i.e., “F - - - the Draft”).
Justice Harlan’s majority opinion famously observed: “Those in the Los Angeles courthouse [offended by the jacket]
could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” 403 U.S. 15, 21 (1971).

In our online 21st century world, averting our eyes is more difficult to do as we are bombarded by tweets, text messages,
blogs and email. The availability and efficiency of the Internet makes it a potent weapon. If “the pen is mightier than
the sword,” the tweet is thermo-nuclear. Yet, the technological development of the Internet should not change our society’s
commitment to free expression.

Reactionaries among us are pushing back on what they view as expression run amuck. These folks compare the Internet to a
lawless “Wild West” in which reputations can be shot with virtual impunity. Free speech advocates, on the other
hand, liken the Internet to a super political pamphlet offering free world-wide publication for citizens wishing to express
their views on public issues. These competing views of the Internet are being argued in full force in courtrooms around the
country, including Indiana.

In Oregon, a federal jury recently awarded a lawyer a $2.5 million defamation verdict against self-styled “investigatory
blogger” Crystal Cox. Cox authored a number of highly critical blogs about attorney Kevin Padrick and his investment
firm, Obsidian Finance, using such unimaginative names as obsidianfinancesucks.com. Cox’s more lucid blog entries accused
Padrick of misconduct while acting as bankruptcy trustee of a failed financial company. Full of name-calling and venom, not
to mention misspellings and bad grammar, Cox’s blog would have presented a challenge for even the most persuasive First
Amendment lawyer to defend. (Cox defended herself without legal representation.)

As outrageous and unsupported as Cox’s blogs may be, the verdict is troubling because of the strict liability standard
the court applied. The court held Cox liable for defamation without regard to whether she knew or should have known what she
wrote was false. Well-established First Amendment protection bars liability against a media defendant without some showing
of fault or negligence. An even higher burden of proof, knowing falsity or reckless disregard, applies when the plaintiff
is a public official or public figure or when punitive damages are imposed. The federal District Court judge concluded, however,
that Cox was not entitled to such First Amendment protections because she was not a member of the news media. The court noted
that Cox failed to show she had any journalistic training or followed any “journalistic standards such as editing, fact-checking
or disclosures of conflicts of interest.”

Closer to home, the Indiana Court of Appeals will soon decide whether and under what circumstances a plaintiff in a defamation
lawsuit may require a non-party media organization to identify the author of anonymous comments to news stories published
on the organization’s website. A Marion Superior Court ordered The Indianapolis Star to comply with a subpoena
demanding the newspaper identify who commented anonymously to a news story on the newspaper’s website. The plaintiffs,
Jeffrey and Cynthia Miller, allege that Jeffrey Miller’s former employer, Junior Achievement, Junior Achievement’s
current president (Miller’s successor) and others defamed him by accusing him of financial mismanagement (or worse)
in connection with certain Junior Achievement projects. The Indianapolis Star covered the controversy and its online
publication of its news stories attracted a number of anonymous, online comments, some of which are the subject of the Millers’
lawsuit.

The appeal focuses on one particular commenter who’s been identified only by the pseudonym, “DownWithTheColts.”
That commenter wrote: “This is not JA’s responsibility. They need to look at the FORMER president of JA and others
on the ELEF board. The ‘missing’ money can be found in their bank accounts.”

This anonymous post was mild in comparison to those posted by known commenters who the Millers are already suing. Nevertheless,
the Millers have forced the issue by arguing that TheIndianapolis Star (which is immune from suit under
the Communications Decency Act) should not be permitted to withhold the identity of “DownWithTheColts” and deny
the Millers the opportunity to add another name to the caption of their lawsuit.

Neither “DownWithTheColts” nor “investigatory blogger” Cox will ever be confused with Publius, the
penname some of our Founding Fathers used to publish the Federalist Papers, or other great American political writers. But
expressive freedom cannot be conditioned on content or viewpoint. It is not such a distant slip down the slope to censorship
commonly seen in other countries, even other democracies. France, for example, recently made it a crime punishable for up
to a year in prison to deny that the Ottoman Empire committed genocide against Armenians during World War I.

It is unfortunate that some act irresponsibly in expressing themselves on the Internet. However, our First Amendment rights
are too fragile and too precious to be watered down or jeopardized because of the irresponsible actions of a small minority
of the populace. Free expression is certainly not free of costs. There is a price we must pay, but in my view, the benefits
of living in a free society are well worth it.•__________

Steven Badger is a partner in the Bose McKinney & Evans Litigation Group and concentrates his practice
on business litigation and appeals. He represents and advises media organizations, journalists and writers regarding the First
Amendment, defamation law, newsgathering, access to public records and hearings, copyright law and other media law matters.
The opinions expressed are those of the author.

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